Been smacked by the ICO? Reveal your internal probes

Template FOI: Right, who left the laptop in the pub?

If public authorities are subject to enforcement action by the Information Commissioner (eg, monetary penalty notice, undertaking, audit, enforcement notice etc), they should be prepared for internal reports into why the action was taken to become the target for Freedom of Information (FOI) requests.

This is the outcome of a recent Decision Notice involving the London Borough of Ealing. Implicitly, the comissioner is signalling that he thinks such reports and investigations should be published where practicable.

In February 2011, Ealing Council reported a theft of two laptops containing the details of around 1,700 individuals were stolen from an employee’s home (including sensitive personal data). Almost 1,000 of the individuals were clients of Ealing Council and both laptops were password protected but unencrypted – despite this being of Council policy. The ICO served Ealing Council with a Monetary Penalty Notice of £80,000.

On 30 May 2011, the Council received a FOI request for “... a copy of the report into the loss of the unencrypted laptop which resulted in an £80,000 fine from the ICO”. The council directed the applicant to the Monetary Penalty Notice published on the ICO’s website.

The requester wrote back explaining that it was the council’s own internal report into the matter that was being sought. The council refused to provide the requested information stating that the information was being withheld under the ‘prejudice to effective conduct of public affairs’ exemption (namely section 36(2)(b) of the FOIA) and that the public interest was in favour of non-disclosure. This position was upheld on internal review.

The ICO decided that the council had correctly applied the ‘prejudice to effective conduct of public affairs’ exemption but that it wrongly concluded that the public interest in maintaining the exemption outweighed the public interest in disclosure. The two main reasons for this decision were as follows:

Disclosure “would also contribute to public understanding of the issues documented in the publically available Monetary Penalty Notice”.

“Disclosure would demonstrate to the public that the council has taken robust steps to address the security implications of the incident and that measures have been put in place to ensure that there is not a recurrence. This would improve public confidence in the workings of the council”.

Now I am suggesting to you that these two arguments employed by the ICO could apply to almost any enforcement action by his office. So if your employer is a public authority and subject to enforcement action under the Data Protection Act, then expect FOI requests which will probably lead to the publication of your internal investigations into the problem.